NOLAN REDDEN EGGER, PETITIONER V. UNITED STATES OF AMERICA
No. 89-7550
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. A) is unpublished,
but the decision is noted at 898 F.2d 159 (Table).
JURISDICTION
The judgment of the court of appeals was entered on February 16,
1990. Pet. App. 1A. A petition for rehearing was denied on March 22,
1990. Pet. App. 1B. The petition for a writ of certiorari was filed
on May 18, 1990. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
QUESTION PRESENTED
Whether retrial following a mistrial is barred by the Double
Jeopardy Clause unless defense counsel's motion for a mistrial was
made with the defendant's fully informed and publicly acknowledged
consent.
STATEMENT
A grand jury in the Northern District of Alabama indicted
petitioner on charges of conspiring to sell counterfeit currency, in
violation of 18 U.S.C. 371 (Count 1); possession of counterfeit
currency, in violation of 18 U.S.C. 472 (Count 2); and passing
counterfeit currency, in violation of 18 U.S.C. 472 (Counts 3 and 4).
Petitioner's first jury trial resulted in a mistrial. His second jury
trial ended in convictions on two counts (Counts 1 and 2), and
acquittal on a third count (Count 3). /1/ The district court
subsequently granted petitioner a new trial based upon the
government's inadvertent violation of the Jencks Act, 18 U.S.C. 3500,
and Brady v. Maryland, 373 U.S. 83 (1963). Prior to the commencement
of the third trial, petitioner moved to dismiss the indictment on
double jeopardy grounds. The district court denied his motion, and
the court of appeals affirmed. Pet. App. A.
1. At petitioner's first trial, the government called Leonard
Palumbo as a witness. At the conclusion of Palumbo's examination, the
following exchange occurred:
THE COURT: Thank you. You may be excused.
THE WITNESS: Your Honor, I've got a little comment because --
THE COURT: I don't want to hear from you. Go on. You're excused.
Go on.
THE WITNESS: Well --
THE COURT: Go on.
THE WITNESS: Okay, Your Honor. But I wrote this up last night.
I've got a legal obligation to say this.
THE COURT: I don't want to hear you.
THE WITNESS: As a real estate broker --
THE COURT: I don't want to hear it.
THE WITNESS: state license, under the State of Alabama.
THE COURT: Take this man out.
THE WITNESS: I would be glad to go.
THE COURT: I'll put you in jail if you fool with me. Now get him
out of here.
THE MARSHAL: Are these your books, here?
THE WITNESS: Yes, sir. (Witness escorted from the courtroom by
Marshals.) Pet. App. D3. The district court then instructed the
prosecutor to call the next government witness. Before the witness
was called, however, the prosecution requested a side bar conference.
The court adjourned to chambers, where the following discussion took
place:
THE COURT: Do you want a mistrial?
MR. LOCKE (Defense Counsel): Yes, Sir.
THE COURT: I'm certainly inclined to declare it.
MR. LOCKE: All right. I would so move.
THE COURT: You're going to have to get this thing in different
order. I don't think there's any way at all that we can fairly try
this case for the Government or for the Defendant, under the
circumstances, towards this jury.
I knew this man was going to give you trouble.
Like I say, I never saw a Palumbo that didn't.
MR. SINCLAIR (Prosecutor): Well, Your Honor, asking him for his
name and address, we didn't anticipate that we would have this
problem. We would argue that the defense invited the problem.
THE COURT: Did you sit down and talk with him before you put him
on the stand?
MR. SINCLAIR: No, sir.
THE COURT: You did not. The best trial lawyers in the criminal
world tried a case before me one time. He told me he never put a
witness on the stand that he hadn't talked to them at least twice.
I'm going to declare a mistrial in this case. It will be set for
retrial and somebody else will try it; not me.
(Open Court)
THE COURT: Ladies and gentlemen of the jury, in my judgment,
there's no way that we can continue the trial of this case and see
that both the Government and the Defendant get a fair trial.
There's no way I can erase from my mind, and your mind, some things
that have happened in this case. I'm going to declare a mistrial.
The case will be tried over again by a different judge and different
jury. Pet. App. 3A-4A.
Petitioner's second trial began on June 5, 1989. Prior to this
trial, petitioner filed a motion to dismiss the indictment on double
jeopardy grounds. The district court denied the motion, and the trial
proceeded. /2/ The jury convicted petitioner on two of the three
remaining counts in the indictment, and acquitted him on the third
count. Petitioner moved for a new trial, alleging that the government
had failed to disclose an exculpatory statement made to government
agents by a prosecution witness. The district court granted
petitioner's motion, concluding that the government's omission,
although an oversight, was significant enough to warrant a new trial.
The government did not appeal this ruling. Pet. App. 4A.
In September 1989, before the start of the third trial, petitioner
again moved to dismiss the indictment on double jeopardy grounds. See
C.A. App. 11-12. He alleged that the prosecution's lack of
preparedness necessitated the first mistrial and that the trial court
provoked the defendant's mistrial motion. Pet. App. 5A. A magistrate
recommended that the motion be denied, Pet. App. D, and the district
court adopted the magistrate's recommendation. Pet. App. C.
2. The court of appeals affirmed. Pet. App. A. The court held
that the district court did not commit clear error in determining that
petitioner had consented to the mistrial. Because petitioner
consented, the court stated, he waived any double jeopardy claim that
he otherwise might have had. Pet. App. 5A-6A. The court of appeals
also agreed with the district court's determination that the court did
not pressure defense counsel into seeking the mistrial. Pet. App.
6A-7A. Finally, the court of appeals rejected petitioner's contention
that the Double Jeopardy Clause barred retrial following the
government's unintentional Brady violation. The court found that,
absent a showing that the government intended to prod the defendant
into seeking another mistrial, the proper remedy for the Brady
violation was a new trial. Pet. App. 7A-8A.
ARGUMENT
Petitioner contends (Pet. 9-17) that the Double Jeopardy Clause
bars any further prosecution for the counterfeiting offenses because
the record does not show that petitioner's counsel moved for a
mistrial with petitioner's "fully informed and publicly acknowledged
consent." Pet. 11. This contention, which petitioner raised for the
first time in his petition for rehearing to the court of appeals, is
without merit. Accordingly, review by this Court is not warranted.
1. Petitioner failed to raise his present argument before the
district court, see C.A. App. 11-12, or in his initial briefing and
argument in the court of appeals. Petitioner instead contended that
the district court goaded his lawyer into requesting a mistrial, and
that the court's conduct barred retrial. See Pet. C.A. Br. 8-14.
Indeed, petitioner's initial brief submitted to the court of appeals
conceded that "(i)n this case (petitioner) moved for a mistrial(,)
thus consenting to the mistrial and waiving any double jeopardy
protection unless the prosecutor or judge intentionally provoked the
request for a mistrial." Id. at 10. Petitioner raised the waiver
issue for the first time in his petition for rehearing to the court of
appeals, which was denied without opinion. Pet. App. B. See note 4,
infra.
If petitioner had raised his contention in the district court, that
court could have entered findings as to whether petitioner and his
counsel discussed the possibility of moving for a mistrial, and
whether petitioner voiced any objection to his lawyer's course of
action. The district court also could have determined whether there
was a manifest necessity to grant a mistrial even over the defendant's
objection, a determination that would be entitled to deference on
appeal. Cf. Arizona v. Washington, 434 U.S. 497, 510 (1978) (trial
court's determination that improper and prejudicial remarks of
prosecutor required a mistrial is entitled to special respect).
2. In any event, petitioner's claim is without merit. In United
States v. Dinitz, 424 U.S. 600 (1976), the Court stated that it had
"implicitly rejected the contention that the permissibility of a
retrial following a mistrial * * * depends on a knowing, voluntary,
and intelligent waiver of a constitutional right." Id. at 609-610 n.11
(citing cases). The Court said that it was error to "treat() the
defendant's interest in going forward before the first jury as a
constitutional right comparable to the right to counsel," and thus
reliance on Johnson v. Zerbst, 304 U.S. 458 (1938), is misplaced in
this context. 424 U.S. at 610 n.11. The Court's statements in Dinitz
are consistent with the general rule that a defendant's personal
consent is needed only for a few "fundamental decisions regarding the
case, such as to whether to plead guilty, waive a jury trial, testify
in his or her own behalf, or take an appeal." Jones v. Barnes, 463
U.S. 745, 751 (1983); see also Wainwright v. Sykes, 433 U.S. 72, 93
n.1(1977) (Burger, C.J., concurring). Thus, in Lee v. United States,
432 U.S. 23 (1977), the Court held that there was no violation of
double jeopardy principles where "the District Court * * * did not act
sua sponte but in response to a motion by defense counsel." Id. at 31
(emphasis added). Petitioner cites Taylor v. Illinois, 484 U.S. 400
(1988), for the proposition that a motion for mistrial requires the
informed and public consent of the defendant (Pet. 11), but Taylor
does not include double jeopardy rights among the few "basic rights
that the attorney cannot waive without the fully informed and publicly
acknowledged consent of the client," and states that "the lawyer has
-- and must have -- full authority to manage the conduct of the
trial." /3/ Id. at 417-418 & n.24.
None of the decisions of the courts of appeals cited by petitioner
conflicts with the decision of the Eleventh Circuit in this case.
Adamson v. Ricketts, 789 F.2d 722 (9th Cir. 1986), rev'd, 483 U.S. 1
(1987), presented the question whether the Double Jeopardy Clause
barred a prosecution following the defendant's breach of a plea
agreement. Not only did the question in Adamson differ from the
question in this case, but this Court subsequently reversed the
decision of the Ninth Circuit, holding that prosecution of the
defendant did not violate double jeopardy principles. 483 U.S. at 8.
In Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980), cert. denied, 449
U.S. 1085 (1981), the defendant objected to a mistrial. Petitioner,
unlike the defendant in Walker, does not contend that he objected to
the mistrial, or even that he would have objected had he been present
at the conference in chambers. Finally, in United States v. Rich, 589
F.2d 1025, 1027-1032 (10th Cir. 1978), the district court discharged
the jury over the objections of defense counsel, while the defendant
was absent from the courtroom. Here, petitioner's counsel
unambiguously consented to a mistrial, and petitioner was present in
the courtroom when the jury was dismissed. /4/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
ANDREW LEVCHUK
Attorney
JULY 1990
/1/ Prior to the second trial, the district court granted the
government's motion to dismiss Count 4. Pet. App. 2A n.1.
/2/ Petitioner elected not to pursue an interlocutory appeal. Pet.
App. 4A n.2.
/3/ The other decisions of this Court cited by petitioner are
inapposite. Brookhart v. Janis, 384 U.S. 1 (1966), held that a
defendant's lawyer may not waive the defendant's right to plead not
guilty and have a jury trial by consenting to a trial procedure that
is the practical equivalent of a guilty plea. Green v. United States,
355 U.S. 184 (1957), held that a defendant convicted of a lesser
included offense does not waive the right not to be retried for the
greater offense by successfully appealing the conviction. Schneckloth
v. Bustamonte, 412 U.S. 218, 237-238 (1973), noted in passing that
Green applied the knowing and intelligent waiver standard in a double
jeopardy setting. But the Court has expressly stated that the
permissibility of retrial following mistrial does not depend on a
knowing, voluntary, and intelligent waiver by the defendant. United
States v. Dinitz, 424 U.S. at 609-610 n.11.
/4/ Petitioner also contends, in passing, that his absence from the
conference in the trial judge's chambers violated his right to be
present at all critical stages of his trial. Pet. 11-12 (citing
Faretta v. California, 422 U.S. 806 (1975)). But Faretta concerned
the right to self-representation. Here, petitioner was represented in
the conference by his attorney, and Fed. R. Crim. P. 43(c)(3) provides
that a defendant's presence is not required at a conference upon a
question of law. In any event, this issue was not raised in the
courts below, and thus need not be addressed here. See United States
v. Lovasco, 431 U.S. 783, 788 n.7 (1977).